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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CLERK
US DISTRICT &
BANKRUPTCY COURTS
2009 NOV 30 PM 2:02
RECEIVED
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UNITED STATES OF AMERICA
Department of Justice, Antitrust Division
450 5th Street, N.W., Suite 7000
Washington, D.C. 20530,
STATE OF MISSOURI
Office of the Attorney General
P.O. Box 899
Jefferson City, Missouri 65102, and
STATE OF NEBRASKA,
Office of the Attorney General
2115 State Capitol Building
Lincoln, Nebraska 68509-8920,
Plaintiffs,
v.
STERICYCLE, INC.
28161 North Keith Drive
Lake Forest, Illinois 60045,
ATMW ACQUISITION CORP.
28161 North Keith Drive
Lake Forest, Illinois 60045,
MEDSERVE, INC.
6575 West Loop South, Suite 145
Bellaire, Texas, 77401, and
AVISTA CAPITAL PARTNERS, L.P.
6575 West Loop South, Suite 145
Bellaire, Texas 77401,
Defendants.
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CASE NO.: 1:09-cv-02268
JUDGE: John D. Bates
DECK TYPE: Antitrust
DATE STAMP: November 30, 2009
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COMPLAINT
Plaintiff, the United States of America ("United States"), acting
under the direction of the Attorney General of the United States, and
plaintiffs, the State of Missouri and the State of Nebraska, acting
under the direction of their respective Attorneys General, bring this
civil antitrust action against defendants, Stericycle, Inc. and ATMW
Acquisition Corp. and MedServe, Inc. and Avista Capital Partners, L.P.
to enjoin Stericycle's proposed acquisition of MedServe and to obtain
other equitable relief. Plaintiffs complain and allege as follows:
I. NATURE OF THE ACTION
1. Pursuant to an agreement and plan of merger dated May 9, 2009,
Stericycle intends to acquire all of the voting shares of MedServe in
a transaction valued at $185 million. Defendants Stericycle and MedServe
currently compete in the provision of infectious waste collection and
treatment services for large quantity generator ("LQG") customers. The
resulting combination would create a monopoly in the provision of infectious
waste collection and treatment services for LQG customers in the states
of Missouri, Nebraska, Oklahoma, and Kansas.
2. The United States, the State of Missouri, and the State of Nebraska
bring this action to prevent the proposed acquisition because it would
substantially lessen competition in the provision of infectious waste
collection and treatment services for LQG customers in the states of
Kansas, Missouri, Nebraska, and Oklahoma, in violation of Section 7
of the Clayton Act, 15 U.S.C. § 18.
II. JURISDICTION AND VENUE
3. The United States brings this action under Section 15 of the Clayton
Act, as amended, 15 U.S.C. §§ 4 and 25, to prevent and restrain
defendants from violating Section 7 of the Clayton Act, 15 U.S.C. §
18. The State of Missouri and the State of Nebraska bring this action
under Section 16 of the Clayton Act, 15 U.S.C. § 26, to prevent
and restrain defendants from violating Section 7 of the Clayton Act,
15 U.S.C. § 18. The State of Missouri and the State of Nebraska,
by and through their respective Attorneys General, or other authorized
officials, bring this action in their sovereign capacities and as parens
patriae on behalf of the citizens, general welfare, and economy of each
of their states.
4. Defendants collect and treat infectious waste generated by LQG
customers in the flow of interstate commerce. Defendants' activities
in collecting and treating infectious waste substantially affect interstate
commerce. The Court has jurisdiction over this action and over the parties
pursuant to 15 U.S.C. § 22 and 28 U.S.C. §§ 1331 and
1337.
5. Defendants transact business, and have consented to venue and personal
jurisdiction, in the District of Columbia. Venue is
therefore proper in this District under Section 12 of the Clayton Act,
15 U.S.C. § 22 and 28 U.S.C. § 1391(c).
III. THE DEFENDANTS
6. Defendant Stericycle, Inc. is a Delaware corporation with its principal
place of business in Lake Forest, Illinois. Stericycle, a multi-national
company, is the largest provider of infectious waste collection and
treatment services in the United States, with operations in nearly all
of the contiguous 48 states, including 46 treatment facilities and 80
transfer and collection sites. In 2008, Stericycle reported total worldwide
sales of approximately $1.1 billion, of which approximately 78 percent
were generated in the United States. ATMW Acquisition Corp. is a corporation
formed by Stericycle to facilitate its acquisition of MedServe. Stericycle
and ATMW hereinafter are collectively referred to as Stericycle.
7. Defendant MedServe is a Delaware corporation with its principal
place of business in Bellaire, Texas. MedServe is the second-largest
provider of infectious waste collection and treatment services in the
United States, with operations in 25 states that include eight treatment
facilities and 18 transfer and collection sites. In 2008, MedServe had
total revenues of about $35.6 million. Avista Capital Partners, L.P.
is an entity formed by MedServe to facilitate the acquisition of MedServe
by Stericycle. MedServe and Avista hereinafter are collectively referred
to as MedServe.
IV. TRADE AND COMMERCE
- The Relevant Service Market
8. Regulated medical waste is waste generated in
the diagnosis, treatment, or immunization of human beings or animals.
There are generally three types of regulated medical waste: (1) infectious
waste; (2) pathological waste; and (3) trace chemotherapy waste. Infectious
waste is waste that has come into contact with bodily fluids and "sharps"
waste, such as syringes and scalpels. Pathological waste is anatomical
parts, and trace chemotherapy waste is small amounts of chemical compounds
used to treat cancer patients and the equipment used to administer the
compounds. Infectious waste comprises approximately 90 percent of the
regulated medical waste generated in the United States.
9. State and federal governments heavily regulate the collection and
treatment of regulated medical waste. They prescribe how each type of
regulated medical waste must be stored, collected, and treated. Providers
of infectious waste collection and treatment services are required to
be licensed by various state and federal regulatory agencies before
they can offer such services.
10. Regulated medical waste must be stored separately from other types
of waste, and each type of regulated medical waste must be stored separately
from the other types in specially marked and sealed containers. Collection
and transport of regulated medical waste to treatment facilities must
be performed by state-approved companies.
11. State-approved treatment facilities must be used to render regulated
medical waste non-infectious. Failure to use state-approved treatment
facilities subjects both the generator of the infectious waste and the
infectious waste collection and treatment service provider to criminal
prosecution, fines, damage actions, and potentially high clean-up costs.
12. Autoclaves are the most prevalent treatment technology for infectious
waste. An autoclave uses steam sterilization combined with pressure
to render infectious waste non-infectious. Because autoclaving is a
reliable and long-proven technology, it has become the preferred choice
for treating infectious waste.
13. The infectious waste collection and treatment services industry
categorizes customers according to the amount of infectious waste they
generate. LQG customers typically are hospitals, large laboratories,
and other large medical facilities that generate large amounts of infectious
waste. LQG customers often need collection to occur on a daily basis,
or at least several times a week, and must receive continuous supplies
of containers with sizeable storage capacity from their service providers.
14. LQG customers require their service providers to perform both
infectious waste collection and treatment. They also require their providers
to meet strict standards to ensure they have sufficient technical capability,
knowledge, and financial resources. For example, an LQG customer typically
requires an infectious waste collection and treatment service provider
to have: (a) an adequate infrastructure to serve the customer's needs,
including trucks, storage containers, transfer stations, electronic
equipment capable of monitoring and tracking each type of waste, and
personnel with a variety of expertise to support the infrastructure;
(b) an established reputation for providing reliable and timely collection
and treatment for LQG customers; (c) its own infectious waste treatment
facility to minimize the number of companies that handle the waste,
thereby reducing the possibility that the waste is mishandled; and (d)
substantial liability insurance that meets all federal and state regulatory
requirements governing infectious waste.
15. Collection and treatment providers bid for each LQG customer's
business separately, and an infectious waste collection and treatment
service provider can identify the specific competitive conditions that
apply to each LQG customer, including which potential competitors can
serve that LQG customer. Infectious waste collection and treatment service
providers for LQG customers can and do price discriminate based on an
LQG customer's requirements and the number of other competitors available
to provide such services.
16. A small but significant increase in the price of infectious waste
collection and treatment services for LQG customers would not cause
LQG customers to move sufficient volumes of infectious waste to another
type of collection and treatment service so as to make such a price
increase unprofitable.
17. Accordingly, the provision of infectious waste collection and
treatment services for LQG customers is a line of commerce and a relevant
price discrimination service market within the meaning of Section 7
of the Clayton Act.
- The Relevant Geographic Market
18. The geographic market for the provision of infectious waste collection
and treatment services for LQG customers is largely defined by transportation
costs. Infectious waste collection and treatment companies rely on trucks
to transport waste from customer sites to their treatment facilities.
Transfer stations enable service providers to transfer their waste into
tractor-trailers and more cost-effectively to transport their waste
to treatment facilities. Typically, the greater the distance between
an LQG customer's operations and the service provider's treatment or
transfer facility, the less price competitive the provider is.
19. For LQG customers served by MedServe in Kansas, Missouri, Nebraska,
and Oklahoma, the only competitive alternative is Stericycle. In these
states, no other infectious waste collection and treatment service provider
has a facility located within approximately 300 miles of Stericycle's
or MedServe's facilities.
20. In the states of Kansas, Missouri, Nebraska, and Oklahoma, LQG
customers would not switch to a more distant infectious waste collection
and treatment service provider in sufficient numbers so as to make a
small but significant increase in price unprofitable.
21. Accordingly, the states of Kansas, Missouri, Nebraska, and Oklahoma
are a relevant geographic market within the meaning of Section 7 of
the Clayton Act.
- Anticompetitive Effects of the Acquisition
22. In the states of Kansas, Missouri, Nebraska, and Oklahoma, the
market for the provision of infectious waste collection and treatment
services for LQG customers is highly concentrated. Following the acquisition,
Stericycle would become the monopoly provider of infectious waste collection
and treatment services for LQG customers in these states.
23. Vigorous price competition between Stericycle
and MedServe in the provision of infectious waste collection and treatment
services has benefited LQG customers in Kansas, Missouri, Nebraska,
and Oklahoma. Stericycle and MedServe are each other's only rivals,
directly competing on price and quality of service in the provision
of infectious waste collection and treatment services for LQG customers.
24. Therefore, the proposed acquisition will eliminate the competition
between Stericycle and MedServe; reduce the number of providers of infectious
waste collection and treatment services for LQG customers from two to
one; and enable Stericycle to establish a monopoly in the provision
of such services, leading to higher prices and lower quality of service
for LQG customers in Kansas, Missouri, Nebraska, and Oklahoma, in violation
of Section 7 of the Clayton Act.
- Entry into Collection and Treatment of Infectious Waste Generated
by LQG Customers
25. Successful entry into the provision of collection
and treatment services for infectious waste for LQG customers in Kansas,
Missouri, Nebraska, and Oklahoma would be difficult, time-consuming,
and costly. A prospective provider of infectious waste collection and
treatment services for LQG customers faces substantial financial and
permitting requirements to build a facility and the infrastructure needed
to serve LQG customers. It also must have an established reputation
for handling the large amounts of infectious waste produced by LQG customers.
26. A provider of infectious waste collection and treatment services
for LQG customers in Kansas, Missouri, Nebraska, and Oklahoma must establish
a treatment facility that contains a treatment technology, such as an
autoclave, with sufficient capacity for treating large volumes of infectious
waste. In addition to the capital costs of the treatment unit, local
zoning and state permits are required.
27. A provider of infectious waste collection and treatment services
for LQG customers also must have an infrastructure of trucks, transfer
stations, and electronic equipment capable of collecting, transporting,
treating and disposing, and monitoring and tracking the infectious waste.
28. A provider of infectious waste collection and treatment services
for LQG customers must develop a reputation and record of reliably collecting
and treating large volumes of infectious waste in compliance with state
and federal regulations.
29. A provider of infectious waste collection and treatment services
for LQG customers must have the financial capability to indemnify LQG
customers for any environmental fines or accidents resulting from the
collection, transportation, and treatment of the infectious waste.
30. Obtaining the necessary permits and building an autoclave facility,
establishing the infrastructure to serve LQG customers, and developing
a reputation and record of service and compliance would require in excess
of two years.
31. Entry into the provision of infectious waste collection and treatment
services for LQG customers in Kansas, Missouri, Nebraska, and Oklahoma
would not be timely, likely, or sufficient to counter anticompetitive
price increases or diminished quality of service that Stericycle could
impose after the proposed acquisition.
V. VIOLATION ALLEGED
32. The United States incorporates the allegations of paragraphs 1
through 31 above.
33. Stericycle's proposed acquisition of all of MedServe's voting
securities and infectious waste collection and treatment assets in the
states of Kansas, Missouri, Nebraska, and Oklahoma will substantially
lessen competition and tend to create a monopoly in interstate trade
and commerce in violation of Section 7 of the Clayton Act, 15 U.S.C.
§ 18.
34. Unless restrained, the transaction will have the following anticompetitive
effects, among others:
- actual and potential competition between Stericycle and MedServe
in the provision of infectious waste collection and treatment services
for LQG customers in the states of Kansas, Missouri, Nebraska, and
Oklahoma will be eliminated;
- competition generally in the provision of infectious waste collection
and treatment services for LQG customers in the states of Kansas,
Missouri, Nebraska, and Oklahoma will be substantially lessened; and
- prices for infectious waste collection and treatment services for
LQG customers in the states of Kansas, Missouri, Nebraska, and Oklahoma
will likely increase, and service likely will be reduced.
VI. REQUESTED RELIEF
35. Plaintiffs request:
- That Stericycle's proposed acquisition of MedServe be adjudged and
decreed to be unlawful and in violation of Section 7 of the Clayton
Act, 15 U.S.C. § 18;
- That defendants and all persons acting on their behalf be permanently
enjoined and restrained from consummating the proposed acquisition
of MedServe by Stericycle, or from entering into or carrying out any
contract, agreement, plan, or understanding, the effect of which would
be to merge the voting securities or assets of the defendants;
- That plaintiffs receive such other and further relief as the case
requires and the Court deems just and proper; and
- That plaintiffs recover the costs of this action.
Dated: November 30, 2009
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:
_______________/s/________________
Christine A. Varney
Assistant Attorney General
_______________/s/________________
Molly S. Boast
Deputy Assistant Attorney General
_______________/s/________________
J. Robert Kramer II
Director of Operations
FOR PLAINTIFF STATE OF MISSOURI
Chris Koster
Attorney General
By:
_______________/s/________________
Anne E. Schneider
Assistant Attorney General
State of Missouri
P.O. Box 899
Jefferson City, MO 65102
Tel: (573) 751-8455
Fax: (573) 751-2041
Email: Anne.Schneider@ago.mo.gov
FOR PLAINTIFF STATE OF NEBRASKA
Jon Bruning
Attorney General
By:
_______________/s/________________
Leslie C. Levy
Assistant Attorney General
2115 State Capitol Building
Lincoln, NE 68509-8920
Tel.: (402) 471-2811
Fax: (402) 471-4725
Email: Leslie.Levy@nebraska.gov
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_______________/s/________________
Maribeth Petrizzi
Chief, Litigation II Section
D.C. Bar # 435204
_______________/s/________________
Dorothy B. Fountain
Assistant Chief, Litigation II Section
D.C. Bar # 439469
_______________/s/________________
Frederick H. Parmenter
Stephen A. Harris
Carolyn Davis
Leslie D. Peritz
Jay D. Owen
Attorneys
U.S. Department of Justice
Antitrust Division, Litigation II Section
450 Fifth Street, NW
Suite 8700
Washington, D.C. 20530
Tel: (202) 307-0924
Fax: (202) 307-6583
Email: Frederick.Parmenter@usdoj.gov
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